1. Before this Court for determination is a Notice of Motion dated 11th August 2025, seeking which seeks orders that;
a. Spent
b. Spent
c. Upon hearing the applications herein inter partes, the Honourable court be pleased to review and set aside the orders given on 22nd July 2025 by ordering that the funds held in the accounts of Henry Kuria Karara t/a Ms. Westminister Merchants Auctioneers in the sum of Kshs 21, 000, 000 be transferred and preserved in an interest earning account in the names of the 1st Interested Party and the decree holder’s advocates pending the determination of advocate-client bill of costs between the 1st Interested Party and the Decree Holder in Milimani HCCOMMMISC/E1006/2023 KENNETH MWANGI MBURU VERSUS JAVISAPA ENTERPRISES LIMITED, MACHAKOS HCCCMISC/E242/2023, K.M MBURU & ASSOCIATES VES JAVISAPA ENTERPRISES LTD AND MACHAKOS ELCMISC/E040/2024 KENNETH MWANGI MBURU & ASSOCIATES VERSUS JAVISAPA ENTERPRISES LIMITED.
d. In the alternative and without prejudice to prayer (3) above the Honorable court be pleased to review the orders given on 22/7/2025 by the Hon. Lady Justice Rhoda Rutto by ordering that;
i. In view of the pending determination of advocate-client bills of costs between the 1st Interested Party and the Decree Holder in Milimani HCCOMMMISC/E1006/2023 KENNETH MWANGI MBURU VERSUS JAVISAPA ENTERPRISES LIMITED, MACHAKOS HCCCMISC/E242/2023, K.M MBURU & ASSOCIATES VES JAVISAPA ENTERPRISES LTD AND MACHAKOS ELCMISC/E040/2024 KENNETH MWANGI MBURU & ASSOCIATES VERSUS JAVISAPA ENTERPRISES LIMITED, a sum of Kshs 10, 000, 000 be preserved in an interest earning account in the names of the 1st Interested Party and the decree holder’s advocates.
ii. Upon resolution of the above mentioned Bill of costs, the 1st Interested Party and the decree holder’s advocates shall release the taxed costs to the 1st Interested Party’s bank account.
e. Any other further orders of the court geared towards protecting the dignity and authority of the court.
f. The costs of the application be in the cause.
2. The application is premised on grounds that in its ruling delivered on 22nd July 2025, the Court ordered the release of Kshs. 21,000,000/= held by the 2nd Interested Party, Westminster Merchants Auctioneers, to the Decree Holder, denied the claim for interest at 12% per annum from 2nd August 2023 and directed each party to bear its own costs. The deponent states that the Court reasoned that the 1st Interested Party had already received Kshs. 5,000,000/= for its services in accordance with the parties’ fee agreement and had therefore not justified continued retention of the funds. The Court further interpreted the consent order of 11th December 2023 as relating only to costs in the present matter and found that the 1st Interested Party had not demonstrated any subsisting entitlement to retain the funds.
3. However, the deponent contends that the Court acknowledged that the Kshs. 5,000,000/= payment was made after the adoption of the consent and treated it as compliance with the terms of the consent, an interpretation which the 1st Interested Party is aggrieved. He asserts that there is an error apparent on the face of the record regarding the timing of the payment, stating that the sum was deposited on 30th October 2023, prior to the consent of 11th December 2023. According to him the consent merely confirmed and validated an already completed payment of legal fees
4. The deponent further states that the Court failed to appreciate the purpose for which the sum of Kshs. 21,000,000/= was preserved under paragraph (iii)(b) of the consent order. He avers that the preservation was intended to secure outstanding legal fees in other matters between the parties. He adds that this position arose from discussions held pursuant to the Court’s directions to pursue an amicable settlement and was grounded in good faith. He also relies on proceedings of 6th February 2024, which he contends reaffirmed the 1st Interested Party’s interest in the funds.
5. He explained that the mention scheduled for 18th December 2023 was intended solely to confirm compliance with the release of Kshs. 70,000,000/= to the Decree Holder and not to address outstanding costs. He therefore contends that the Decree Holder’s subsequent application for release of the preserved funds before finalization of the pending bills of costs in other matters was made in bad faith and contrary to the intent of the consent order.
6. The deponent further contends that the Court overlooked material evidence contained in a Replying Affidavit sworn on 29th May 2025 by the Decree Holder’s director in Milimani HCCOMMMISC/E1006/2023, in which the director allegedly acknowledged that the escrow funds were intended to secure taxation of bills of costs in other matters. He submits that this omission constitutes an error apparent on the face of the record warranting review.
7. It is further deposed that unless the funds are preserved, the 1st Interested Party will suffer substantial prejudice. He states that the Decree Holder is no longer a going concern and that its Director has expressed an intention to utilize the funds for personal purposes, thereby creating a real risk that the outstanding legal fees may not be recoverable if the funds are released.
8. In summary, the deponent urges the Court to find that the Kshs. 5,000,000/= legal fees were settled prior to the adoption of the consent, that the sum of Kshs. 21,000,000/= was preserved as security for outstanding costs in other matters between the parties and that the Decree Holder itself had previously acknowledged this position. In the alternative, he seeks preservation of Kshs. 10,000,000/=, as approximate outstanding legal fees noting that at least one pending bill of costs remains pending. He further avers that the application was filed promptly following the ruling of 22nd July 2025 and urges the Court to review its decision and preserve the funds pending resolution of the outstanding costs issues.
9. In response to the application, the Applicant through its director, Jacqueline Njeru field a Replying Affidavit sworn on 22nd August 2025 opposing the application on several grounds. She deponed that she had previously informed the Court of her ill health, which required specialized treatment abroad, and that she suffered greatly due to what she described as deliberate tactics by the Interested Parties aimed at denying her justice.
10. She stated that the decretal sum in dispute was deposited in the auctioneer’s account on 2nd August 2023 where it has remained for over two years. According to her both the auctioneer and the advocate had consistently employed strategies to delay the conclusion of the matter, and the present application for review is merely a further attempt to frustrate her from enjoying the fruits of her judgment.
11. She recalled that following her application dated 5th February 2024, the Court delivered its ruling on 22nd July 2025 directing that the sum of Kshs. 21,000,000/= held by the auctioneer be released to the Applicant. At the advocate’s request, the Court granted a 21 day stay of execution to allow for an appeal. However, instead of filing an appeal, the advocate filed the present application for review on 11th August 2025, a day before the expiry of the stay order. She contends that the timing was deliberately and intended to further delay execution.
12. The deponed further stated that extraction of court orders is the responsibility of the court and any complaints in that regard cannot form a basis for review. She referred to correspondence on the issue but maintained that such matters were peripheral to the substantive determination already made.
13. she expressed agreement with the Court’s findings that costs arising from other matters were unrelated to the present suit. In her view, advocate-client costs from separate proceedings are independent and should be pursued within those respective matters, without reference to the decretal funds herein. She relied on rulings and certificates of costs in other proceedings to support this position
14. . Additionally, she averred that a balance of over Kshs. 45,729,141/= remains outstanding under the judgment and that continued withholding of the Kshs. 21,000,000/= would further prejudice the Applicant. She maintained that there is no basis for review, as the court has already interpreted the consent order and confined the advocate’s entitlement to costs strictly to this matter. She argued that this was a legal determination and can only be challenged on appeal, not through review and that no error apparent on the face of the record has been demonstrated.
15. On the advocate’s assertion that Kshs. 5,000,000/= legal fees was paid before adoption of the consent order, the deponent disputed the claim, terming it as misleading and made in bad faith. She stated that the fee agreement was not incorporated into the consent order and did not specify when the fees were due.
16. She further maintained that no payment could properly have been made without the authority of the Court. She asserted that payment of the advocate’s fees were, in fact, paid on 20th December 2023 when the advocate released Kshs. 70,000,000/= to the Applicant in compliance with the consent order. On that basis, she contended that the Court correctly found that payment was effected after the consent had already been adopted.
17. She also argued that the validity or enforceability of the fee agreement was not an issue before the Court and could only be litigated in separate proceedings between the advocate and the Applicant if necessary.
18. The deponent further opposed the advocate’s argument regarding the preservation of the Kshs. 21,000,000/= allegedly to secure costs in other matters. She stated that the Court had already considered and rejected this position in its ruling, having found that the preserved funds related solely to the present matter. According to her, the Court could not revisit its own decision through review proceedings, as this would amount to sitting on appeal.
19. She added that the advocate had not filed any bill of costs in this suit, which was the only matter before the Court, and therefore lacked any lawful basis for retaining the funds.
20. On the advocate’s reliance on the purpose of the mention scheduled for 18th December 2023, the deponent argued that the issue had not been raised for determination in the application that gave rise to the ruling of 22nd July 2025. She further stated that substantive orders are not ordinarily issued during a mention and that the proceedings of that date could not now be relied upon to reopen matters already determined.
21. Similarly, she contended that the Court could not be faulted for failing to consider the averments allegedly made in other proceedings, including Miscellaneous Application No. E1006 of 2023, as those matters fell outside the scope and jurisdiction of the present proceedings.
22. In conclusion, she averred that the issues raised by the advocate were points of law which, if the advocate was dissatisfied with the Court’s determination, ought properly to have been pursued on appeal rather than by way of review. She therefore maintained that the application was made in bad faith and should be dismissed.
23. The 1st Interested Party filed a further affidavit sworn on 18th September 2025. The deponent stated that the Further Affidavit was limited to addressing the core issues raised in opposition to the application for review. He maintained that it was entirely within the advocate’s prerogative to move the Court through any lawful procedure available, including an application for review. He maintained that it was entirely within the advocate’s prerogative to move the court through the lawful procedure available, including an application for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
24. He further asserted that advocates and other court users are entitled to raise complaints concerning perceived irregularities or abuse of court process whenever such issues arise. He rejected the Applicant’s contention that the application sought a reinterpretation of the law maintaining instead that it was grounded on a mistake or error apparent on the face of the record, and therefore falls squarely within the Court’s review jurisdiction. He emphasized that the application did not seek to challenge the Court’s legal reasoning but rather to correct factual errors evident from the record.
25. In response to the Applicant’s assertions on the payment of legal fees, the deponent contended that the Court had correctly observed that the Applicant acknowledged paying Kshs. 5,000,000/= to the advocates pursuant to a fee agreement. He noted that the Applicant had neither challenged, set aside, or varied the agreement under Sections 45 or 46 of the Advocates Act. He further reiterated that documentary evidence annexed in the Supporting Affidavit demonstrated that the Kshs. 5,000,000/= was paid on 30th October 2023, prior to the adoption of the consent order on 11th December 2023.
26. The deponent disputed the Applicant’s reliance on the bank statement annexed as “JN5”, arguing that it did not show payment of legal fees to K.M. Mburu & Associates. Instead, he asserted that the statement merely reflected the transfer of Kshs. 70,000,000/= from the advocates to the Applicant on 20th December 2023 following receipt of Kshs. 75,000,000/= and did not evidence any payment of legal fees.
27. He therefore maintained that the Court erred in finding that the legal fees had been paid after the consent order had been adopted whereas the documentary record showed that the fees had been settled beforehand. He further contended that, in adopting a strict interpretation of the consent order, the court failed to consider the Applicant’s own admission that the Kshs. 21,000,000/= was being held in escrow pending the determination of bills of costs between the Applicant and the advocates. According to him, this admission constituted material evidence demonstrating the intended purpose of preserving the funds and ought to have been taken into account in determining the application.
28. In conclusion, the deponent maintained that the errors complained of were apparent on the face of the record and did not require elaborate examination or re-evaluation of evidence. He therefore urged the Court to exercise its review jurisdiction and reconsider the orders issued in the ruling of 22nd July 2025 on the basis of those manifest error.
29. The court directed the parties to file written submissions and scheduled oral highlighting which proceeded on 21st October 2025. The 1st Interested Party filed submissions dated 9th October 2025, while the Decree holder’s submissions are dated 1st October 2025. On 21st October 2025, counsel for the 2nd Interested Party informed the court that they are not opposing the application.
Applicant’s/1st Interested Party’s submissions
30. Mr. Mburu, counsel for the 1st Interested Party, commenced his submissions by outlining the nature of the application and grounds upon which it was brought
31. The Interested Party submitted that the application was properly before the Court and noted that a conditional stay of execution had already been granted on 12th August 2025 pending its determination. it was contended that the application was founded on two principal grounds.
32. First, that the Court fell into error at paragraph 32 of its ruling by stating that the legal fees of Kshs. 5,000,000/= had been paid after adoption of the consent order, thereby leading to the conclusion that the payment was made in compliance with the consent and that the Interested Party had no justification for retaining the funds.
33. Secondly, it was submitted that the Court failed to consider material evidence contained in the Decree Holder’s director’s Replying Affidavit sworn on 29th May 2025 in Milimani HCCOMMMISC/E1006/2023, in which she expressly acknowledged that the disputed funds were being held in escrow pending taxation of bills of costs in other matters in which the Interested Party had acted for the Decree Holder. According to the Interested Party, these constituted errors apparent on the face of the record warranting review.
34. The Interested Party further argued that the Plaintiff’s opposition to the application was not supported by evidence and instead rested on conjecture, speculation and unsupported allegations. It was submitted that the Plaintiff had on several occasions, acknowledged the existence of a valid fee agreement with the Interested Party and had admitted that the sum of Kshs. 5,000,000/= was paid pursuant to that agreement. Consequently, the Plaintiff could not now argue that the fee agreement ought to have been subjected to taxation before a taxing officer.
35. The Interested Party maintained that the payment of Kshs. 5,000,000/= was made pursuant to a valid advocate-client fee agreement and was therefore not open to challenge in the manner suggested. Counsel further submitted that the Court’s finding that the fees were paid after the adoption of the consent order was inconsistent with the documentary evidence on record, which showed that the payment was made on 30th October 2023, well before the consent order of 11th December 2023. It was therefore contended that the Court’s conclusion on the timing of payment amounted to a patent factual error apparent on the face of the record.
36. The Interested Party also submitted that, although the Court adopted a strict interpretation of the consent order, it failed to take into account the Plaintiff’s own admission that the Kshs. 21,000,000/= was being held in escrow pending determination of bills of costs between the Plaintiff and the advocates. It was argued that this admission was highly material and should have informed the Court’s determination regarding the preservation of the funds. The omission to consider that evidence, it was contended, constituted a clear error or omission warranting review.
37. The Interested Party submitted that the Court’s jurisdiction was anchored in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. It emphasized that the application was grounded on an error apparent on the face of the record and the failure to consider material evidence.
38. The Interested Party submitted that the law is settled that an error must be self-evident and obvious on a plain reading of the record, without requiring an elaborate process of reasoning or lengthy arguments. An error, must be so manifest that no court would permit it to remain uncorrected. It was further submitted that review may be granted to correct such an apparent error or omission, provided it is clear and does not require detailed analysis to establish.
39. In support of these submissions, reliance was placed on Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR, and the decision of Pancras T. Swai v Kenya Breweries Limited [2014] KECA 883 (KLR). The Interested Party maintained that its complaint did not concern the interpretation of the law or the correctness of the Court’s legal reasoning. Rather, it related to factual matters arising from evidence already on record, namely the date of payment of legal fees and the admissions concerning the escrow funds. Counsel therefore argued that the application properly invoked the Court’s review jurisdiction and did not amount to an appeal in disguise.
40. The Interested Party emphasized that it was not inviting the Court to adopt a different legal view of the dispute, nor did it assert that the Court had proceeded on an incorrect exposition of the law. Instead, it maintained that the Court had inadvertently overlooked or misapprehended certain factual matters clearly borne out by the evidence. In particular, it identified two errors: first, that the legal fees were paid before, and not after, the adoption of the consent order; and secondly, that the Court failed to consider relevant evidence demonstrating that the disputed funds were being held in escrow pending taxation of bills of costs.
41. On that basis the Interested Party submitted that the Notice of Motion Application was meritorious and urged the Court to allow the application as prayed.
Decree Holder submissions
42. Decree Holder’s submissions began with an introduction and brief background to the application. The decree holder contends that the application fails to meet the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. It was submitted that the issues raised by the Advocate do not constitute errors apparent on the face of the record but rather involve legal questions concerning the interpretation and construction of the consent order and the Court’s findings in the ruling delivered on 22nd July 2025.
43. Consequently, any challenge to those findings properly lies by way of an appeal to the Court of Appeal, not through review proceedings. The Plaintiff further argued that the Advocate is merely seeking a second opportunity to relitigate matters that have already been conclusively determined, particularly after prior unsuccessful attempts to delay the finalization of the dispute.
44. The Decree Holder submitted that since the application is expressly founded on the alleged existence of an error apparent on the face of the record, it must satisfy the strict legal test applicable to such claims. In support, reliance was placed on the Court of Appeal decision in Nyamogo & Nyamogo v Kogo [2001] EA 174, Multipurpose Co-operative Society Ltd v Server & 3 Others (Civil Appeal 160 of 2018) [2023] KECA 441 (14 April 2023) (Judgment) and Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243. These authorities were cited for the proposition that a review application cannot be used to invite the Court to re-examine evidence or reassess conclusions already made. Further reliance was placed on Catherine Nduku v Trinity Transport Services & Another [2020] eKLR to emphasize that issues of legal interpretation do not amount to errors apparent on the face of the record.
45. The decree holder identified two issues for determination; whether the matter raised by the Applicant concern questions of facts or issues of the law and what orders should be issued.
46. Regarding the Advocate’s substantive complaint, the Decree Holder submitted that the Court’s finding at paragraph 32 of the ruling was factually correct and cannot be characterized as an apparent error on the face of the record. It was argued that the Advocate does not dispute that the payment of Kshs. 5,000,000/= was made after adoption of the consent order and has not explain why the consent order explicitly referred to that sum if the fees had already been fully settled. The Plaintiff further noted that the Advocate failed to produce a certificate of costs to support the alleged fee agreement. Reliance was placed on Section 34 of the Civil Procedure Act, which mandates that all questions relating to execution, discharge or satisfaction of a decree be determined by the executing court, as well as Order 22 Rule 56(2) of the Civil Procedure Rules, which empowers the executing court to determine charges and expenses incurred during execution. It was submitted that these provisions demonstrate that execution costs must be ascertained by the court executing regardless of any private arrangement between the parties.
47. The Decree Holder further contended that the Advocate’s assertion that the consent order validated payment of his fees raises a legal issue regarding the interpretation and effect of the fee agreement vis-à-vis the consent order, rather than a question of fact. Such issue it was urged, falls within the jurisdiction of an appellate court and is therefore not amenable to review. The Decree Holder emphasized the Court findings at paragraph 31 of the ruling, namely that no clause in the consent order extended preservation of the funds to cover costs in unrelated suits and that any such intention would have required explicit wording. Reference was also made to paragraph 38 of the ruling where the Court held that pending bills of costs in unrelated proceedings could not justify indefinite retention of the Kshs. 21,000,000/=.
48. It was further submitted that the issue of whether the consent order validated the Advocate’s fee agreement was neither raised during the hearing of the application dated 9th February 2024 nor reflected in the consent order itself. As the consent order made no reference to any fee agreement, the advocate cannot introduce this issue at the review stage.
49. The Decree holder added that even if the Advocate’s fees had been paid prior to the recording of the consent order, this would not affect the Court’s conclusion that the consent related only to costs in the present matter and not costs arising from other suits.
50. The Decree Holder challenged the Advocate’s assertion that he received the Kshs. 5,000,000/= on 30th October 2023 noting that this claim was raised for the first time in the review Application and is supported only by a statement generated from the Advocate’s own office. The Plaintiff questioned why the parties would subsequently record a consent addressing legal fees if those fees had already been fully settled. In particular, reliance was placed on paragraph 1(ii) of the consent order, which provided that the remaining funds retained in the account of K.M. Mburu & Associates would constitute part of the firm's legal fees. It was further argued that the alleged error is neither obvious, nor self-evident, rather, its determination would require a detail examination of evidence and interpretation of legal instruments. As such, the matter falls outside the scope of review jurisdiction and properly belongs to an appellate court. The Decree Holder maintained that the Advocate’s true grievance is dissatisfaction with the Court’s finding that the preserved costs were limited to the present suit and that the Application is, in substance, an appeal disguised as a review.
51. In conclusion, the court was urged to dismiss the Notice of Motion dated 11th August 2025 with costs.
Analysis and Determination
52. I have considered the rival affidavits by parties, oral highlights and submissions on record in respect of the notice of motion dated 11th August 2025. In my view only one issue arises for determination, namely, whether the 1st Interested Party/Applicant has satisfied the legal threshold for review of the ruling delivered on 22nd July 2025 under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
53. The application before the court seeks a review of the ruling delivered on 22nd July 2025. The 1st Interested Party contends that the Court committed errors apparent on the face of the record by, firstly, finding that the sum of Kshs. 5,000,000/= paid to the Applicant was made after the adoption of the consent order dated 11th December 2023 and, second, by failing to consider material evidence allegedly demonstrating that the sum of Kshs. 21,000,000/= preserved under the consent order was intended to secure advocate-client costs in other matters between the parties. The Decree Holder opposes the application on the basis that the issues raised relate to the interpretation of the consent order and the Court’s findings of law which fall within the appellate court jurisdiction rather than the Court’s review jurisdiction.
54. The law governing review is well settled. The jurisdiction of the Court to review its own orders is anchored in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
55. Section 80 of the Civil Procedure Act, Cap. 21 Laws of Kenya, provides as follows:
“Any person who considers himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
56. Order 45 Rule 1 of the Civil Procedure Rules provides that a person aggrieved by a decree or order may apply for review on the grounds of discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced at the time the decree was passed; on account of some mistake or error apparent on the face of the record; or for any other sufficient reason. It states that;
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the
order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the
review.”
57. The Court of Appeal, in the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, s
[...truncated]
a. Spent
b. Spent
c. Upon hearing the applications herein inter partes, the Honourable court be pleased to review and set aside the orders given on 22nd July 2025 by ordering that the funds held in the accounts of Henry Kuria Karara t/a Ms. Westminister Merchants Auctioneers in the sum of Kshs 21, 000, 000 be transferred and preserved in an interest earning account in the names of the 1st Interested Party and the decree holder’s advocates pending the determination of advocate-client bill of costs between the 1st Interested Party and the Decree Holder in Milimani HCCOMMMISC/E1006/2023 KENNETH MWANGI MBURU VERSUS JAVISAPA ENTERPRISES LIMITED, MACHAKOS HCCCMISC/E242/2023, K.M MBURU & ASSOCIATES VES JAVISAPA ENTERPRISES LTD AND MACHAKOS ELCMISC/E040/2024 KENNETH MWANGI MBURU & ASSOCIATES VERSUS JAVISAPA ENTERPRISES LIMITED.
d. In the alternative and without prejudice to prayer (3) above the Honorable court be pleased to review the orders given on 22/7/2025 by the Hon. Lady Justice Rhoda Rutto by ordering that;
i. In view of the pending determination of advocate-client bills of costs between the 1st Interested Party and the Decree Holder in Milimani HCCOMMMISC/E1006/2023 KENNETH MWANGI MBURU VERSUS JAVISAPA ENTERPRISES LIMITED, MACHAKOS HCCCMISC/E242/2023, K.M MBURU & ASSOCIATES VES JAVISAPA ENTERPRISES LTD AND MACHAKOS ELCMISC/E040/2024 KENNETH MWANGI MBURU & ASSOCIATES VERSUS JAVISAPA ENTERPRISES LIMITED, a sum of Kshs 10, 000, 000 be preserved in an interest earning account in the names of the 1st Interested Party and the decree holder’s advocates.
ii. Upon resolution of the above mentioned Bill of costs, the 1st Interested Party and the decree holder’s advocates shall release the taxed costs to the 1st Interested Party’s bank account.
e. Any other further orders of the court geared towards protecting the dignity and authority of the court.
f. The costs of the application be in the cause.
2. The application is premised on grounds that in its ruling delivered on 22nd July 2025, the Court ordered the release of Kshs. 21,000,000/= held by the 2nd Interested Party, Westminster Merchants Auctioneers, to the Decree Holder, denied the claim for interest at 12% per annum from 2nd August 2023 and directed each party to bear its own costs. The deponent states that the Court reasoned that the 1st Interested Party had already received Kshs. 5,000,000/= for its services in accordance with the parties’ fee agreement and had therefore not justified continued retention of the funds. The Court further interpreted the consent order of 11th December 2023 as relating only to costs in the present matter and found that the 1st Interested Party had not demonstrated any subsisting entitlement to retain the funds.
3. However, the deponent contends that the Court acknowledged that the Kshs. 5,000,000/= payment was made after the adoption of the consent and treated it as compliance with the terms of the consent, an interpretation which the 1st Interested Party is aggrieved. He asserts that there is an error apparent on the face of the record regarding the timing of the payment, stating that the sum was deposited on 30th October 2023, prior to the consent of 11th December 2023. According to him the consent merely confirmed and validated an already completed payment of legal fees
4. The deponent further states that the Court failed to appreciate the purpose for which the sum of Kshs. 21,000,000/= was preserved under paragraph (iii)(b) of the consent order. He avers that the preservation was intended to secure outstanding legal fees in other matters between the parties. He adds that this position arose from discussions held pursuant to the Court’s directions to pursue an amicable settlement and was grounded in good faith. He also relies on proceedings of 6th February 2024, which he contends reaffirmed the 1st Interested Party’s interest in the funds.
5. He explained that the mention scheduled for 18th December 2023 was intended solely to confirm compliance with the release of Kshs. 70,000,000/= to the Decree Holder and not to address outstanding costs. He therefore contends that the Decree Holder’s subsequent application for release of the preserved funds before finalization of the pending bills of costs in other matters was made in bad faith and contrary to the intent of the consent order.
6. The deponent further contends that the Court overlooked material evidence contained in a Replying Affidavit sworn on 29th May 2025 by the Decree Holder’s director in Milimani HCCOMMMISC/E1006/2023, in which the director allegedly acknowledged that the escrow funds were intended to secure taxation of bills of costs in other matters. He submits that this omission constitutes an error apparent on the face of the record warranting review.
7. It is further deposed that unless the funds are preserved, the 1st Interested Party will suffer substantial prejudice. He states that the Decree Holder is no longer a going concern and that its Director has expressed an intention to utilize the funds for personal purposes, thereby creating a real risk that the outstanding legal fees may not be recoverable if the funds are released.
8. In summary, the deponent urges the Court to find that the Kshs. 5,000,000/= legal fees were settled prior to the adoption of the consent, that the sum of Kshs. 21,000,000/= was preserved as security for outstanding costs in other matters between the parties and that the Decree Holder itself had previously acknowledged this position. In the alternative, he seeks preservation of Kshs. 10,000,000/=, as approximate outstanding legal fees noting that at least one pending bill of costs remains pending. He further avers that the application was filed promptly following the ruling of 22nd July 2025 and urges the Court to review its decision and preserve the funds pending resolution of the outstanding costs issues.
9. In response to the application, the Applicant through its director, Jacqueline Njeru field a Replying Affidavit sworn on 22nd August 2025 opposing the application on several grounds. She deponed that she had previously informed the Court of her ill health, which required specialized treatment abroad, and that she suffered greatly due to what she described as deliberate tactics by the Interested Parties aimed at denying her justice.
10. She stated that the decretal sum in dispute was deposited in the auctioneer’s account on 2nd August 2023 where it has remained for over two years. According to her both the auctioneer and the advocate had consistently employed strategies to delay the conclusion of the matter, and the present application for review is merely a further attempt to frustrate her from enjoying the fruits of her judgment.
11. She recalled that following her application dated 5th February 2024, the Court delivered its ruling on 22nd July 2025 directing that the sum of Kshs. 21,000,000/= held by the auctioneer be released to the Applicant. At the advocate’s request, the Court granted a 21 day stay of execution to allow for an appeal. However, instead of filing an appeal, the advocate filed the present application for review on 11th August 2025, a day before the expiry of the stay order. She contends that the timing was deliberately and intended to further delay execution.
12. The deponed further stated that extraction of court orders is the responsibility of the court and any complaints in that regard cannot form a basis for review. She referred to correspondence on the issue but maintained that such matters were peripheral to the substantive determination already made.
13. she expressed agreement with the Court’s findings that costs arising from other matters were unrelated to the present suit. In her view, advocate-client costs from separate proceedings are independent and should be pursued within those respective matters, without reference to the decretal funds herein. She relied on rulings and certificates of costs in other proceedings to support this position
14. . Additionally, she averred that a balance of over Kshs. 45,729,141/= remains outstanding under the judgment and that continued withholding of the Kshs. 21,000,000/= would further prejudice the Applicant. She maintained that there is no basis for review, as the court has already interpreted the consent order and confined the advocate’s entitlement to costs strictly to this matter. She argued that this was a legal determination and can only be challenged on appeal, not through review and that no error apparent on the face of the record has been demonstrated.
15. On the advocate’s assertion that Kshs. 5,000,000/= legal fees was paid before adoption of the consent order, the deponent disputed the claim, terming it as misleading and made in bad faith. She stated that the fee agreement was not incorporated into the consent order and did not specify when the fees were due.
16. She further maintained that no payment could properly have been made without the authority of the Court. She asserted that payment of the advocate’s fees were, in fact, paid on 20th December 2023 when the advocate released Kshs. 70,000,000/= to the Applicant in compliance with the consent order. On that basis, she contended that the Court correctly found that payment was effected after the consent had already been adopted.
17. She also argued that the validity or enforceability of the fee agreement was not an issue before the Court and could only be litigated in separate proceedings between the advocate and the Applicant if necessary.
18. The deponent further opposed the advocate’s argument regarding the preservation of the Kshs. 21,000,000/= allegedly to secure costs in other matters. She stated that the Court had already considered and rejected this position in its ruling, having found that the preserved funds related solely to the present matter. According to her, the Court could not revisit its own decision through review proceedings, as this would amount to sitting on appeal.
19. She added that the advocate had not filed any bill of costs in this suit, which was the only matter before the Court, and therefore lacked any lawful basis for retaining the funds.
20. On the advocate’s reliance on the purpose of the mention scheduled for 18th December 2023, the deponent argued that the issue had not been raised for determination in the application that gave rise to the ruling of 22nd July 2025. She further stated that substantive orders are not ordinarily issued during a mention and that the proceedings of that date could not now be relied upon to reopen matters already determined.
21. Similarly, she contended that the Court could not be faulted for failing to consider the averments allegedly made in other proceedings, including Miscellaneous Application No. E1006 of 2023, as those matters fell outside the scope and jurisdiction of the present proceedings.
22. In conclusion, she averred that the issues raised by the advocate were points of law which, if the advocate was dissatisfied with the Court’s determination, ought properly to have been pursued on appeal rather than by way of review. She therefore maintained that the application was made in bad faith and should be dismissed.
23. The 1st Interested Party filed a further affidavit sworn on 18th September 2025. The deponent stated that the Further Affidavit was limited to addressing the core issues raised in opposition to the application for review. He maintained that it was entirely within the advocate’s prerogative to move the Court through any lawful procedure available, including an application for review. He maintained that it was entirely within the advocate’s prerogative to move the court through the lawful procedure available, including an application for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
24. He further asserted that advocates and other court users are entitled to raise complaints concerning perceived irregularities or abuse of court process whenever such issues arise. He rejected the Applicant’s contention that the application sought a reinterpretation of the law maintaining instead that it was grounded on a mistake or error apparent on the face of the record, and therefore falls squarely within the Court’s review jurisdiction. He emphasized that the application did not seek to challenge the Court’s legal reasoning but rather to correct factual errors evident from the record.
25. In response to the Applicant’s assertions on the payment of legal fees, the deponent contended that the Court had correctly observed that the Applicant acknowledged paying Kshs. 5,000,000/= to the advocates pursuant to a fee agreement. He noted that the Applicant had neither challenged, set aside, or varied the agreement under Sections 45 or 46 of the Advocates Act. He further reiterated that documentary evidence annexed in the Supporting Affidavit demonstrated that the Kshs. 5,000,000/= was paid on 30th October 2023, prior to the adoption of the consent order on 11th December 2023.
26. The deponent disputed the Applicant’s reliance on the bank statement annexed as “JN5”, arguing that it did not show payment of legal fees to K.M. Mburu & Associates. Instead, he asserted that the statement merely reflected the transfer of Kshs. 70,000,000/= from the advocates to the Applicant on 20th December 2023 following receipt of Kshs. 75,000,000/= and did not evidence any payment of legal fees.
27. He therefore maintained that the Court erred in finding that the legal fees had been paid after the consent order had been adopted whereas the documentary record showed that the fees had been settled beforehand. He further contended that, in adopting a strict interpretation of the consent order, the court failed to consider the Applicant’s own admission that the Kshs. 21,000,000/= was being held in escrow pending the determination of bills of costs between the Applicant and the advocates. According to him, this admission constituted material evidence demonstrating the intended purpose of preserving the funds and ought to have been taken into account in determining the application.
28. In conclusion, the deponent maintained that the errors complained of were apparent on the face of the record and did not require elaborate examination or re-evaluation of evidence. He therefore urged the Court to exercise its review jurisdiction and reconsider the orders issued in the ruling of 22nd July 2025 on the basis of those manifest error.
29. The court directed the parties to file written submissions and scheduled oral highlighting which proceeded on 21st October 2025. The 1st Interested Party filed submissions dated 9th October 2025, while the Decree holder’s submissions are dated 1st October 2025. On 21st October 2025, counsel for the 2nd Interested Party informed the court that they are not opposing the application.
Applicant’s/1st Interested Party’s submissions
30. Mr. Mburu, counsel for the 1st Interested Party, commenced his submissions by outlining the nature of the application and grounds upon which it was brought
31. The Interested Party submitted that the application was properly before the Court and noted that a conditional stay of execution had already been granted on 12th August 2025 pending its determination. it was contended that the application was founded on two principal grounds.
32. First, that the Court fell into error at paragraph 32 of its ruling by stating that the legal fees of Kshs. 5,000,000/= had been paid after adoption of the consent order, thereby leading to the conclusion that the payment was made in compliance with the consent and that the Interested Party had no justification for retaining the funds.
33. Secondly, it was submitted that the Court failed to consider material evidence contained in the Decree Holder’s director’s Replying Affidavit sworn on 29th May 2025 in Milimani HCCOMMMISC/E1006/2023, in which she expressly acknowledged that the disputed funds were being held in escrow pending taxation of bills of costs in other matters in which the Interested Party had acted for the Decree Holder. According to the Interested Party, these constituted errors apparent on the face of the record warranting review.
34. The Interested Party further argued that the Plaintiff’s opposition to the application was not supported by evidence and instead rested on conjecture, speculation and unsupported allegations. It was submitted that the Plaintiff had on several occasions, acknowledged the existence of a valid fee agreement with the Interested Party and had admitted that the sum of Kshs. 5,000,000/= was paid pursuant to that agreement. Consequently, the Plaintiff could not now argue that the fee agreement ought to have been subjected to taxation before a taxing officer.
35. The Interested Party maintained that the payment of Kshs. 5,000,000/= was made pursuant to a valid advocate-client fee agreement and was therefore not open to challenge in the manner suggested. Counsel further submitted that the Court’s finding that the fees were paid after the adoption of the consent order was inconsistent with the documentary evidence on record, which showed that the payment was made on 30th October 2023, well before the consent order of 11th December 2023. It was therefore contended that the Court’s conclusion on the timing of payment amounted to a patent factual error apparent on the face of the record.
36. The Interested Party also submitted that, although the Court adopted a strict interpretation of the consent order, it failed to take into account the Plaintiff’s own admission that the Kshs. 21,000,000/= was being held in escrow pending determination of bills of costs between the Plaintiff and the advocates. It was argued that this admission was highly material and should have informed the Court’s determination regarding the preservation of the funds. The omission to consider that evidence, it was contended, constituted a clear error or omission warranting review.
37. The Interested Party submitted that the Court’s jurisdiction was anchored in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. It emphasized that the application was grounded on an error apparent on the face of the record and the failure to consider material evidence.
38. The Interested Party submitted that the law is settled that an error must be self-evident and obvious on a plain reading of the record, without requiring an elaborate process of reasoning or lengthy arguments. An error, must be so manifest that no court would permit it to remain uncorrected. It was further submitted that review may be granted to correct such an apparent error or omission, provided it is clear and does not require detailed analysis to establish.
39. In support of these submissions, reliance was placed on Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR, and the decision of Pancras T. Swai v Kenya Breweries Limited [2014] KECA 883 (KLR). The Interested Party maintained that its complaint did not concern the interpretation of the law or the correctness of the Court’s legal reasoning. Rather, it related to factual matters arising from evidence already on record, namely the date of payment of legal fees and the admissions concerning the escrow funds. Counsel therefore argued that the application properly invoked the Court’s review jurisdiction and did not amount to an appeal in disguise.
40. The Interested Party emphasized that it was not inviting the Court to adopt a different legal view of the dispute, nor did it assert that the Court had proceeded on an incorrect exposition of the law. Instead, it maintained that the Court had inadvertently overlooked or misapprehended certain factual matters clearly borne out by the evidence. In particular, it identified two errors: first, that the legal fees were paid before, and not after, the adoption of the consent order; and secondly, that the Court failed to consider relevant evidence demonstrating that the disputed funds were being held in escrow pending taxation of bills of costs.
41. On that basis the Interested Party submitted that the Notice of Motion Application was meritorious and urged the Court to allow the application as prayed.
Decree Holder submissions
42. Decree Holder’s submissions began with an introduction and brief background to the application. The decree holder contends that the application fails to meet the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. It was submitted that the issues raised by the Advocate do not constitute errors apparent on the face of the record but rather involve legal questions concerning the interpretation and construction of the consent order and the Court’s findings in the ruling delivered on 22nd July 2025.
43. Consequently, any challenge to those findings properly lies by way of an appeal to the Court of Appeal, not through review proceedings. The Plaintiff further argued that the Advocate is merely seeking a second opportunity to relitigate matters that have already been conclusively determined, particularly after prior unsuccessful attempts to delay the finalization of the dispute.
44. The Decree Holder submitted that since the application is expressly founded on the alleged existence of an error apparent on the face of the record, it must satisfy the strict legal test applicable to such claims. In support, reliance was placed on the Court of Appeal decision in Nyamogo & Nyamogo v Kogo [2001] EA 174, Multipurpose Co-operative Society Ltd v Server & 3 Others (Civil Appeal 160 of 2018) [2023] KECA 441 (14 April 2023) (Judgment) and Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243. These authorities were cited for the proposition that a review application cannot be used to invite the Court to re-examine evidence or reassess conclusions already made. Further reliance was placed on Catherine Nduku v Trinity Transport Services & Another [2020] eKLR to emphasize that issues of legal interpretation do not amount to errors apparent on the face of the record.
45. The decree holder identified two issues for determination; whether the matter raised by the Applicant concern questions of facts or issues of the law and what orders should be issued.
46. Regarding the Advocate’s substantive complaint, the Decree Holder submitted that the Court’s finding at paragraph 32 of the ruling was factually correct and cannot be characterized as an apparent error on the face of the record. It was argued that the Advocate does not dispute that the payment of Kshs. 5,000,000/= was made after adoption of the consent order and has not explain why the consent order explicitly referred to that sum if the fees had already been fully settled. The Plaintiff further noted that the Advocate failed to produce a certificate of costs to support the alleged fee agreement. Reliance was placed on Section 34 of the Civil Procedure Act, which mandates that all questions relating to execution, discharge or satisfaction of a decree be determined by the executing court, as well as Order 22 Rule 56(2) of the Civil Procedure Rules, which empowers the executing court to determine charges and expenses incurred during execution. It was submitted that these provisions demonstrate that execution costs must be ascertained by the court executing regardless of any private arrangement between the parties.
47. The Decree Holder further contended that the Advocate’s assertion that the consent order validated payment of his fees raises a legal issue regarding the interpretation and effect of the fee agreement vis-à-vis the consent order, rather than a question of fact. Such issue it was urged, falls within the jurisdiction of an appellate court and is therefore not amenable to review. The Decree Holder emphasized the Court findings at paragraph 31 of the ruling, namely that no clause in the consent order extended preservation of the funds to cover costs in unrelated suits and that any such intention would have required explicit wording. Reference was also made to paragraph 38 of the ruling where the Court held that pending bills of costs in unrelated proceedings could not justify indefinite retention of the Kshs. 21,000,000/=.
48. It was further submitted that the issue of whether the consent order validated the Advocate’s fee agreement was neither raised during the hearing of the application dated 9th February 2024 nor reflected in the consent order itself. As the consent order made no reference to any fee agreement, the advocate cannot introduce this issue at the review stage.
49. The Decree holder added that even if the Advocate’s fees had been paid prior to the recording of the consent order, this would not affect the Court’s conclusion that the consent related only to costs in the present matter and not costs arising from other suits.
50. The Decree Holder challenged the Advocate’s assertion that he received the Kshs. 5,000,000/= on 30th October 2023 noting that this claim was raised for the first time in the review Application and is supported only by a statement generated from the Advocate’s own office. The Plaintiff questioned why the parties would subsequently record a consent addressing legal fees if those fees had already been fully settled. In particular, reliance was placed on paragraph 1(ii) of the consent order, which provided that the remaining funds retained in the account of K.M. Mburu & Associates would constitute part of the firm's legal fees. It was further argued that the alleged error is neither obvious, nor self-evident, rather, its determination would require a detail examination of evidence and interpretation of legal instruments. As such, the matter falls outside the scope of review jurisdiction and properly belongs to an appellate court. The Decree Holder maintained that the Advocate’s true grievance is dissatisfaction with the Court’s finding that the preserved costs were limited to the present suit and that the Application is, in substance, an appeal disguised as a review.
51. In conclusion, the court was urged to dismiss the Notice of Motion dated 11th August 2025 with costs.
Analysis and Determination
52. I have considered the rival affidavits by parties, oral highlights and submissions on record in respect of the notice of motion dated 11th August 2025. In my view only one issue arises for determination, namely, whether the 1st Interested Party/Applicant has satisfied the legal threshold for review of the ruling delivered on 22nd July 2025 under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
53. The application before the court seeks a review of the ruling delivered on 22nd July 2025. The 1st Interested Party contends that the Court committed errors apparent on the face of the record by, firstly, finding that the sum of Kshs. 5,000,000/= paid to the Applicant was made after the adoption of the consent order dated 11th December 2023 and, second, by failing to consider material evidence allegedly demonstrating that the sum of Kshs. 21,000,000/= preserved under the consent order was intended to secure advocate-client costs in other matters between the parties. The Decree Holder opposes the application on the basis that the issues raised relate to the interpretation of the consent order and the Court’s findings of law which fall within the appellate court jurisdiction rather than the Court’s review jurisdiction.
54. The law governing review is well settled. The jurisdiction of the Court to review its own orders is anchored in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
55. Section 80 of the Civil Procedure Act, Cap. 21 Laws of Kenya, provides as follows:
“Any person who considers himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
56. Order 45 Rule 1 of the Civil Procedure Rules provides that a person aggrieved by a decree or order may apply for review on the grounds of discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced at the time the decree was passed; on account of some mistake or error apparent on the face of the record; or for any other sufficient reason. It states that;
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the
order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the
review.”
57. The Court of Appeal, in the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, s
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